Environmental groups claim victory for municipal, provincial pesticide bans
May 30, 2011 Dow AgroSciences backs away from NAFTA claim without compensation
Environmental groups are claiming an important victory for the right of municipalities and provinces to ban dangerous pesticides as Dow AgroSciences has backed away from its longstanding dispute of Quebec's cosmetic pesticides ban under NAFTA. In a settlement reached between the Canadian government and Dow, Dow waived its legal actions and claims and accepted no compensation, implicitly confirming the legality under NAFTA of Quebec's ban on the cosmetic use of 2, 4-D herbicides.
"Dow reversed course and decided not to pursue its claim," observed Sidney Ribaux, Executive Director of Équiterre. "This is a very strong message to all jurisdictions that the precautionary arguments for the defence of Quebec's lawn pesticide ban are strong and can be used for other substances."
The settlement was announced by Dow on May 25, ending an arbitration process it had launched back in 2009 to challenge Quebec's ban on the pesticide 2, 4-D. Dow alleged that this ban resulted in a breach of its Chapter 11 NAFTA investor rights, and illegally disallowed the sale and distribution of such cosmetic pesticides as Killex. The company was also seeking $2-million in damages allegedly occurring from the ban.
The pesticide 2, 4-D is a chlorophenoxy herbicide, a group of chemicals that the International Agency for Research on Cancer — a branch of the World Health Organization — classifies as possible human carcinogens. Exposure to this herbicide is also associated with a number of other serious health risks, including effects on the hormone system. [Misleading]
The Manitoba government is being pressured by chemical and farming lobbies to prevent a lawn chemical ban in force in the East from spreading to the province.
Ontario, Quebec, Nova Scotia, New Brunswick and Prince Edward island have sided with medical authorities, including the Canadian Cancer Society, and banned cosmetic pesticides on lawns.
Pesticides used to battle lawn weeds have been banned in several eastern provinces. Manitoba is considering how it will deal with the controversial issue. (Dave Chidley/Canadian Press)Common chemical products used by homeowners to zap a yard's weeds, insects and fungus may also harm people, scientists say. Children and pregnant mothers are thought to be especially vulnerable to the toxins sprayed into the grass.
CropLife Canada represents big chemical companies, such as Monsanto, that make weed-control products has been in contact with Manitoba politicians, a spokesman says.
"We have spoken to elected officials in Manitoba about urban pesticides and the reasons why bans are not only poor public policy, but also … why having pesticides available for use in urban settings is important," CropLife spokeswoman Nadine Sisk told CBC News in an email.
Manitoba's conservation minister says he can't recall being lobbied by the group.
A Sydney University professor says science does not back a proposed worldwide ban on a controversial pesticide.
A UN environment program committee says endosulfan, which was widely used by the cotton industry, should be added to a global list of 21 highly dangerous and long-lasting chemicals.
Professor of environmental and agricultural chemistry Ivan Kennedy says endosulfan is toxic, but it does degrade.
“If the UN determines it to be a persistent organic pollutant, they’ve made a mistake,” he said.
“I’m a bit flabbergasted, quite frankly.”
But Greenpeace spokesman Adam Walters says the proposed ban is appropriate.
There are several weaknesses in Dow’s claims. For one, as the David Suzuki Foundation argues, [i]n the absence of sufficient evidence to definitively establish the cancer risks (or lack thereof) associated with 2,4-D, reference to … [the class of chemicals to which 2,4-D belongs] …is entirely appropriate. Lack of evidence does not necessarily equate to lack of hazard nor justify abandoning precautionary measures given the documented risks associated with closely related chemicals.119
Secondly, Quebec criteria for imposing a ban also include consideration of endocrine disrupting potential. 2,4-D has since been shown to have such potential, providing an additional, legitimate basis for the ban.120 It has also been linked to other serious illnesses.121
115 Ibid., at para 19.